15 J. World Intell. Prop. 1 (2012)

handle is hein.journals/jwip15 and id is 1 raw text is: 

                                         The Journal of World Intellectual Property (2012) Vol. 15, no. 1, pp. 1-25
                                                                 do: 10.1111/j.1747-1796.2011.00433.x


The Right of Access in Digital Copyright: Right

of   the Owner or Right of the User?

Marcella  Favale
University of Bournemouth



In the last decade, copyright scholarship has been suggesting the existence of a new right in copyright law: the
right of access-that is, the right to control access to copyright works for the rightholder, and the right to access
copyright works for the user. According to some authors, this new right was effected through the implementation
and the legal protection of technological protection measures (TPMs). On the other hand, advocates of freedom
of expression suggest that users have the right to access and use copyright works.
This article investigates whether a right of access exists either for owners or users of copyright works in the
European Union (EU) law or international law impacting on it. It finds that no express reference to a right of
access can be detected, on either side. However, the EU Copyright Directive (EUCD) gives defacto copyright
holders the possibility of controlling access and use of copyright works beyond their exclusive rights, which is
not counterbalanced by a user's right of access in the occurrence of copyright limits. Legislative action therefore
needs to be taken to re-establish this balance. This action can be shaped by universal principles recognized in
international human rights treaties and charters. From both owners' and users' side, the limits of the right of
access can be drafted by bearing in mind the ultimate goal of copyright protection: the circulation of culture.
Keywords digital copyright; the right of access; digital right management; EU Copyright Directive


The  Digital Right of Access
Access control has always been part of the rights granted by copyright protection. The exclusive
rights of reproduction and distribution were initially privileges of governments, willing to control the
public access to knowledge. Subsequently, they became privileges of book publishers, who wanted
to avoid unauthorized access to copyright works, in order to recoup their investment. More recently,
issues of access to copyright works have been raised on the side of the user. With the increasing
implementation  of copyright limits, users gained access entitlements to copyright works that compete
with the access-controlling privilege of the right owner.
    The advent of the Digital Era raised the tension between owner and user in the matter of access.
Digital Rights Management   (DRM)   systems were  designed to enforce the exclusive rights of the
owner in the digital environment, thanks to the implementation of access-restricting devices, such as
technological protection measures (TPMs; Mackaay,  1996, pp. 16-9). Legal protection guaranteed
to TPMs  seems  to expand traditional copyright protection, by creating an additional right for the
owner: The right of access (Dusollier, 1999).
    On  the other hand, digital reproduction of copyright works, which is easy and cheap, provided
an incentive for users to work around TPMs and to access copyright works without the authorization
of the owner. Sometimes, they justified their acts by claiming that TPMs do not respect copyright
exceptions. Copyright limitsI and exceptions,2 they argue, guarantee freedom of access to copyright
works in the name of the circulation of culture (Guibault, 2003, pp. 39-40). In truth, TPMs are not
technically designed to make a distinction between beneficiaries of copyright exceptions and other
users. Sometimes they are also implemented on works fallen in the public domain (Elkin-Koren, 1998,


) 2011 Blackwell Publishing Ltd

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